STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARCHIPELAGO COMMUNITY ASSOCIATION, ) INC., )

)

Petitioner, )

)

vs. ) Case No. 98-2430

) DUANE RAAB and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 30 and October 13, 1999, in Stuart, Florida, before Claude B. Arrington, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David B. Earle, Esquire

Wackeen, Cornett, Googe & Ross, P.A. Post Office Box 66

Stuart, Florida 34995

For Respondents: William E. Guy, Jr., Esquire

Post Office Box 3386 Stuart, Florida 34995-3386

Ricardo Muratti, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner (the Association) is a residential community located in Sewall's Point, Martin County, Florida. In 1997, Respondent Raab (Mr. Raab) purchased a residence in Archipelago. All lots in the community, including Mr. Raab's, are on navigable canals that lead to the Intercoastal Waterway (ICW).

The property purchased by Mr. Raab had an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from Respondent Department of Environmental Protection (DEP) to demolish the existing marginal dock and replace it with a virtually identical structure. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel so he could dock his vessel perpendicular to the bulkhead. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under

Rule 40E-4.051(3)(b), Florida Administrative Code, and

Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary.

The Association thereafter timely challenged DEP's determination that the dock did not require an environmental resource permit, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

The petition initially filed by the Association was prepared without benefit of counsel and contained a variety of allegations and issues that exceeded the jurisdiction of the Division of Administrative Hearings. After motions and hearings, the undersigned determined that the only appropriate issue to be resolved in this proceeding was whether Mr. Raab's finger pier creates a "navigational hazard" within the meaning of Section 403.813, Florida Statutes, and Rule 40E- 4.5.051(3)(b), Florida Administrative Code. If it does create a navigational hazard, Mr. Raab's dock is not exempt from the environmental resource permitting process. If it does not create a navigational hazard, the project is exempt from that process.

At the formal hearing, the Association presented the testimony of Cyrus Kissling, Douglas Wulffleff, Garland Wade Aycock (by deposition), Glen Macario, and Eric Holly.

Mr. Kissling, Mr. Wulffelff, and Mr. Aycock are members of the Association. Mr. Macario was accepted as an expert in the area

of navigation. Mr. Holly was accepted as an expert in the fields of hydrographic surveying and mapping. The Association presented 13 exhibits, each of which was admitted into evidence.

Mr. Rabb testified on his own behalf and presented the additional testimony of Bruce Regester, David Narro, David Lidberg, and Terry Morgan (by deposition). Mr. Regester was accepted as an expert in the area of navigation of yachts.

Mr. Narro was the crew chief of the survey crew that collected the data for the hydrographic survery prepared by Aslan, Inc. (Mr. Holly's company). Mr. Lidberg was accepted as an expert in the field of hydrographic surveying. Ms. Morgan is employed by the Army Corps of Engineers. 1/ Mr. Raab presented twenty- eight exhibits, each of which was accepted into evidence.

DEP presented the testimony of its employee, Bruce Jerner.

Mr. Jerner was accepted as an expert in the DEP permitting process.

The last volume of the Transcript of the proceedings was filed November 19, 1999. Each party filed a Proposed Recommended Order, which was duly-considered by the undersigned in the preparation of this Recommended Order. 2/

FINDINGS OF FACT

1. DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373,

   and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code.

2. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet.

3. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW.

4. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority.

5. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a

   virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding.

6. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing.

7. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary.

8. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit.

9. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the

   functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/

10. The prevailing winds in the area in front of

    
    

    Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides.

11. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet.

12. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is

    found that these structures do not create a navigational hazard. 7/

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

14. DEP has jurisdiction over dock construction at the subject site. See Section 373.414, Florida Statutes.

15. Section 403.813(2), Florida Statutes, and

Rule 40E-4.051(3)(b), Florida Administrative Code, set forth the criteria for an exemption from an environmental resource permit. The only issue appropriately before the Division of Administrative Hearings is whether the finger pier and the two additional pilings constitute a "navigational hazard" within the meaning of the statute and rule. Because the evidence established that the project does not constitute a navigational hazard, it is concluded that DEP properly determined that

Mr. Raab's project is entitled to an exemption from an environmental resource permit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit.

DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2000.

ENDNOTES

1/ Ms. Morgan testified only as a fact witness. The Army Corps of Engineers also approved Mr. Raab's dock, including the portions at issue in this proceeding.

2/ At the conclusion of the formal hearing and in a subsequent written motion, counsel for Mr. Raab moved for an award of attorney's fees and costs. Because the Association was substantially justified in bringing this proceeding, that motion will be denied by separate order.

3/ He had obtained the requisite building permit and exemptions from DEP and the Army Corps of Engineers prior to constructing the finger pier.

4/ The channel in front of Mr. Raab's property is defined by his bulkhead on one side of the channel and an area of shoal on the other. While the bulkhead remains constant, the shoals do not because of silting. As used in this order, the term functional width refers to the area between Mr. Raab's bulkhead and the shoals with sufficient depth for the vessels owned by the residents of the Association to safely navigate.

5/ In reaching this finding, the undersigned has considered the equipment and methodologies used by Mr. Holly and Mr. Lidberg

when they conducted their respective hydrographic surveys. Mr. Lidberg's survey was much more detailed than Mr. Holly's.

Although there was an error in the initial survey conducted by Mr. Lidberg because his equipment was improperly calibrated, this error did not impact his final product.

6/ The term "hazard to navigation" has not been defined by DEP's rules.

7/ The undersigned has considered the testimony of Captain Macario, of Mr. Regester, and the residents of the Association who testified, including Mr. Aycock, whose testimony was presented by deposition. While it is clear that the area in front of Mr. Raab's dock should be navigated with care, with due consideration for wind, tide, and the existence of other vessels in the channel, the greater weight of the evidence established that the area can be navigated safely. Mr. Raab's dock will not constitute any more of a hazard to navigation than the other structures that have existed in or along the channels of the Association for many years.

COPIES FURNISHED:

David B. Earle, Esquire

Wackeen, Cornett, Googe & Ross, P.A. Post Office Box 66

Stuart, Florida 34995

William E. Guy, Jr., Esquire Post Office Box 3386

Stuart, Florida 34995-3386

Ricardo Muratti, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency clerk

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-002430

Orders for Case No: 98-002430